Opinion
FSTFA134026627S
02-16-2016
Maria Gonzalez v. Joette Katz, Commissioner, Department of Children and Families
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE STANDING
The petitioner's motion for summary judgment was dismissed because the pleadings were not yet closed, as required by Practice Book § 25-46. ---------
Introduction
This matter involves a petition for a writ of habeas corpus filed by Maria Gonzalez (the " petitioner") where she seeks custody of one minor child (" S"), who is now age six. The matter was initially returnable to the judicial district of Fairfield at Bridgeport on November 19, 2013. It was thereafter transferred to this judicial district on December 19, 2013 (103). The petitioner initially appeared with her counsel at the short calendar on October 6, 2014, for a hearing on three motions. Joette Katz, Commissioner of the Connecticut Department of Children and Families (" DCF") was represented at the hearing by an Assistant Attorney General. The motions heard were as follows: (1) DCF's motion to dismiss the habeas corpus petition (113); (2) petitioner's motion for summary judgment (112); and (3) DCF's motion to dismiss the motion for summary judgment (114). At that initial hearing, neither party offered any testimonial or documentary evidence. In a memorandum of decision dated October 23, 2014, this court denied the petitioner's motion for summary judgment and granted DCF's motion to dismiss that motion.
As for DCF's motion to dismiss the habeas corpus petition, DCF argued that the petitioner was not the biological parent, approved adoptive parent, or legal guardian, and therefore lacked standing to bring this action. The petitioner countered that she was, in fact, the child's " legal mother." As a result of this factual dispute, this court ruled as follows: " The petitioner shall offer proof, at a preliminary evidentiary hearing devoted to standing, that she is the legal guardian of the child."
For various reasons, the parties voluntarily deferred scheduling the preliminary standing hearing until November 17 and 18, 2015. On those dates, the court held an evidentiary hearing and two witnesses testified: (1) Lisbeth Iracema Rodriguez Moro (Ms. Rodriguez), an attorney licensed to practice law in Guatemala who was retained by the biological mother of S; and (2) the petitioner, Maria Gonzalez. A compilation of court documents from Guatemala, including a voluntary petition from S's birth mother conferring guardianship on the petitioner, and a Guatemalan court decree naming the petitioner as the guardian of S, were also submitted. The parties were then given additional time to file post-hearing briefs to address the legal issues that are presented by the extraordinary facts of this case. The sole issue for this court to decide at this time is whether the habeas petitioner has shown a prima facie legal right to custody and, therefore, has standing to seek habeas corpus relief. Evans v. Santoro, 6 Conn.App. 707, 709-10, 507 A.2d 1007 (1986).
This court has carefully considered the evidence presented, the arguments and briefs of counsel, and the judicially noticed court file. The court has also considered the relevant statutes, Practice Book rules and case law, including decisions from the Superior, Appellate and Supreme Courts in the juvenile proceeding involving the same child who is the subject of this habeas petition. While this child has been the subject of an extensive juvenile court proceeding, the specific legal issue now presented to this court has not been addressed directly by any of the prior decisions involving this child, and the petitioner here was not a party to the juvenile court proceeding.
The Connecticut Supreme Court on August 21, 2015 affirmed the Appellate Court's judgment affirming the trial court's order denying the biological mother's motion to revoke the commitment of her son to DCF. The Supreme Court also affirmed the Appellate Court's judgment affirming the trial court's order denying DCF's motion to open and set aside an earlier adjudication of neglect. The issue in the case " was whether [S] had been abandoned by his biological mother . . . and not by Maria G." In re Santiago G., 318 Conn. 449, 471, 121 A.3d 708 (2015).
The court finds the following facts and enters the following orders.
Factual and Procedural Background
Many of the facts are not in dispute. The petitioner alleges that she is a citizen of Argentina and a legal resident of the United States who resides in Stamford, Connecticut. She claims that S is her " legal child" who was born in Guatemala. The child's Guatemalan birth certificate identifies the petitioner and her estranged husband as the child's parents. She provided for all of the child's needs from the date of his birth until October 2012, when the child was removed from her care after DCF obtained an order of temporary custody. The petition alleges that DCF's refusal to release the child to her violates her and the child's federal and state rights to due process, and additionally is contrary to the child's best interests. She requests that the child be released into her care, custody, and control, and that the court stop any efforts to place the child for adoption by a third party. The petition fails to mention a number of significant and unique circumstances that are recounted in DCF's motion to dismiss and in a memorandum of decision issued by the juvenile court on September 9, 2013 , in connection with the petitioner's motion to intervene in the neglect proceeding; that decision, which denied the intervention, is contained in the court file in this matter.
The petitioner is not the biological parent of the child. The child was born on April 18, 2009 to a fourteen-year-old orphan. The birth mother agreed to give her baby to the petitioner and her husband, who attended the child's birth in Guatemala, paid the medical bill and left the medical clinic with the child. The petitioner and her husband obtained a Guatemalan birth certificate that names them as the child's parents. They also paid a sum of money to a man for a United States passport for the child. The child then came with the petitioner into the United States and resided in Stamford, Connecticut with the petitioner, and her now estranged husband.
Over three years later, in September 2012, DCF received a report from the United States Department of Homeland Security that suspected that the petitioner and her husband had engaged in human trafficking by possibly purchasing the child and smuggling him into the United States. DCF alleged physical neglect. An order of temporary custody was thereafter obtained and the child was adjudicated neglected and committed to the custody of DCF until further court order. At some point, DCF learned that the tip received by the Department of Homeland Security was not true; it was made by an individual who apparently harbored some resentment toward the petitioner. The biological mother then sought to revoke the commitment of the child to DCF.
DCF also moved to open the adjudication of neglect because it claimed that the basis for removing S from Maria Gonzalez's care and adjudicating him neglected was a mistake. Specifically, DCF argued that the juvenile court's neglect determination was based on the mutual mistake of the parties that the identity of the child's biological parents was unknown at the time of the commitment and that the child had been a victim of human trafficking. These motions were denied. Interestingly, even though DCF, in the juvenile court case, ultimately took the position that the child should be reunited with the petitioner, in this case DCF argues that the habeas petition should be dismissed.
As previously indicated, the habeas petitioner's motion to intervene in the juvenile court neglect proceeding was denied. Although an appeal from that denial of intervention was initially filed by Maria Gonzalez, it was later withdrawn for reasons never made clear to this court. Thus, she did not formally participate in the juvenile court proceeding, which then made its way through the Appellate and Supreme Courts until the decision of the juvenile court was affirmed.
The court denied the motion to intervene in the juvenile proceedings based on the factors set forth in Practice Book § 35a-4(d), including that the petitioner did not have a " direct and immediate interest in the case, " and that her interest in the case was " adequately represented by existing parties." In re Santiago G., Superior Court, judicial district of Stamford-Norwalk, Docket No. F01-CP-12-002501, (September 9, 2013, Heller, J.)
The petitioner was prosecuted by the federal government on charges related to the child's entry into the United States. On April 16, 2013, she pleaded guilty to a felony, but the United States District Court has not yet imposed a sentence. She has admitted in writing that she obtained custody of a newborn that was not legally adopted and that she illegally brought the child into the United States with a false birth certificate and a fraudulent United States passport.
The present issue, as detailed earlier, concerns DCF's motion to dismiss the habeas petition for lack of subject matter jurisdiction based upon its claim that the petitioner lacks standing. It is this limited issue--whether the petitioner has standing to prosecute her habeas petition--that is the sole subject of this decision.
Discussion
" It is well settled in Connecticut law that a petition for a writ of habeas corpus is a proper procedural vehicle with which to challenge the custody of a child." Weidenbacher v. Duclos, 234 Conn. 51, 60, 661 A.2d 988 (1995); McGaffin v. Roberts, 193 Conn. 393, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 813 (1985). To have standing to sustain the writ, the applicant must allege and prove that he or she is a parent or legal guardian. Weidenbacher v. Duclos, supra, 234 Conn. 62-63. " [A] [party] ordinarily establishes . . . standing by allegations of injury. Similarly, standing exists to attempt to vindicate arguably protected interests." (Internal quotation marks omitted.) Wellswood Columbia, LLC v. Hebron, 295 Conn. 802, 809-10, 992 A.2d 1120 (2010). When these allegations are in dispute, however, " [a] plaintiff has the burden of proof with respect to standing." Emerick v. Glastonbury, 145 Conn.App. 122, 128, 74 A.3d 512 (2013), cert. denied, 311 Conn. 901, 83 A.3d 348 (2014). " In order to invoke the aid of a habeas corpus writ to enforce a right to physical custody of a minor, the applicant for the writ must show a prima facie legal right to custody . . . Once the Writ has issued, the burden of proving that a change of custody would be in the child's best interest rests upon the party seeking the change." Evans v. Santoro, 6 Conn.App. 707, 709-10, 507 A.2d 1007 (1986).
To clarify the standard of proof at this juncture, it is important to make clear that " [a] party . . . need not prove the merits of his case merely to have standing. Standing is an examination of the parties, not the merits of the action." (Footnote omitted.) Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 64, 441 A.2d 68 (1981). " In determining whether [to grant a motion to dismiss], the inquiry usually does not extend to the merits of the case." (Internal quotation marks omitted.) Southport Manor Convalescent Center, Inc. v. Foley, 216 Conn. 11, 16, 578 A.2d 646 (1990). Instead, the plaintiff need only submit " prima facie evidence" or set forth a " prima facie case, " meaning " evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Citations omitted; emphasis in original). Berchtold v. Maggi, 191 Conn. 266, 270, 464 A.2d 1 (1983).
The petitioner claims that S is her " legal child" and that she is the child's " legal mother according to the laws of the Republic of Guatemala." DCF asserts that the petitioner lacks standing because she is not the child's biological parent, nor can she be considered the child's " legal guardian" due to her admissions in the United States District Court criminal prosecution. See Doe v. Doe, 163 Conn. 340, 345, 307 A.2d 166 (1972) (person must allege and prove parenthood or legal guardianship of child born out of wedlock in order to have standing); see also Nye v. Marcus, 198 Conn. 138, 143-44, 502 A.2d 869 (1985) (only parents or legal guardians have standing to seek habeas corpus relief); Evans v. Santoro, 6 Conn.App. 707, 709-10, 507 A.2d 1007 (1986) (in order to invoke habeas corpus relief applicant must show prima facie legal right to custody).
The Connecticut Supreme Court has held that a man's " mere assertion" that he is the biological father of a child, " without more" is insufficient to confer standing to challenge the paternity of a child born in wedlock. Weidenbacher v. Duclos, supra, 234 Conn. 76. The Supreme Court further held that " a putative father of such a child must offer proof, at a preliminary evidentiary hearing devoted to standing, that he is entitled to set in motion the judicial machinery to determine whether he is the biological father of the child ." (Emphasis added.) Id. While this case does not involve a claim that the petitioner is the child's biological parent, it does involve a factually disputed claim that the petitioner is the child's legal guardian and the habeas petitioner here, Maria Gonzalez, has the burden of proving a prima facie legal right to custody.
The primary basis relied upon by the petitioner to establish standing is the existence of a decree issued by a court in Guatemala in 2015. See plaintiff's exhibit 1 (an unchallenged English translation of the exhibit was provided). In Guatemala, the child's biological mother, Cinthya Melissa Estrada Morales, now age 20 and domiciled in Guatemala, through her counsel, Ms. Rodriguez, who testified in this court on November 17, 2015, filed a voluntary petition for confirmation with the Family Trial Court, San Benito, Peten, on June 17, 2015. The petition states that the biological mother " voluntarily granted Custody of the minor child . . . to [Maria Gonzalez], so that she would be responsible to care for, to raise and to nourish said minor child, and to represent him in all aspects of his life as well as to handle any documents before the immigration authorities relating to said minor child, and to represent him within and without of the United States and to process his citizenship and to exercise any legal action in favor of said minor child wherever it may be necessary and before any Judicial Court. I grant to [Maria Gonzalez] all of the power that comes with having CUSTODY, since she is the woman who has cared for the minor child since his birth, as if he were her son, and has provided his sustenance and education." (Emphasis in original.) Plaintiff's Exhibit 1.
On June 18, 2015, Atty. Marco Tulio Locon Marroquin, Judge of the Family Trial Court, Department of Peten, Guatemala, entered judgment. The judgment provides, in relevant part, as follows: " With respect to the petition of [the biological mother] to grant custody of [S] to [Maria Gonzalez], after having exhaustively reviewed the case and the certified birth certificate being among the documents, it is the decision of this court that the person who is responsible for the tutelage of the minor child . . . is [Maria G.], as a consequence thereof the person who is given the parental rights, custody and representation of said minor child, is [Maria G.]. This decision is evidenced by the birth certificate . . . dated [4/21/09] . . . issued by the Civil Registry . . . which document is sufficient to verify the relationship between the woman referred to and the minor child . . . and which document covers the legal formalities of the case and is total proof, for which reason nothing more is required."
It seems clear from the Guatemalan judgment that a significant piece of evidence relied upon by the court there in making its decision was the child's birth certificate that listed Maria Gonzalez as the mother. It is also undisputed that Maria Gonzalez, with the benefit of criminal defense counsel, admitted to the United States District Court for the District of Connecticut that this " birth certificate falsely stated that Gonzalez and her husband were the biological parents of this child." See defendant's exhibit A. The court in Guatemala was nonetheless made aware at the time it entered its decree in June 2015, that Maria Gonzalez was not the child's biological mother. (11/17/15 Transcript, p. 41.) DNA test results were provided to that court and the biological mother's counsel explained to the judge there: (a) the identity of the biological mother; (b) that there was a child custody proceeding in Connecticut; and (c) that the child was in foster care in Connecticut. (11/17/15 Transcript, pp. 46-54.)
The following facts are therefore sufficient to establish a prima facie claim of standing: (1) the now adult biological mother of the child has formally requested through the Guatemalan court that the petitioner have custody of her child; (2) a family court in Guatemala granted that request in June of 2015; (3) the child was raised in Stamford, Connecticut by the habeas petitioner from the child's birth in 2009 until DCF removed the child from the petitioner's custody in October 2012; and (4) the juvenile court on September 9, 2013, noted that " Maria G. is the only mother that [this child] has known, and she is unquestionably his psychological mother." In re Santiago G., Superior Court, judicial district of Stamford-Norwalk, Docket No. F01-CP-12-002501 (September 9, 2013, Heller, J.) .
In denying Maria G.'s motion to intervene in the juvenile court neglect proceeding, among the factors noted by the juvenile court was that her interests in that case were adequately represented by DCF and the biological mother. The same cannot be said in this habeas proceeding; DCF is actively seeking to dismiss the petition and the biological mother is not a party.
This court's conclusion that the petitioner has standing does not equate to the enforcement of the Guatemalan judgment, or otherwise constitute a determination of custody. In Adamsen v. Adamsen, 151 Conn. 172, 195 A.2d 418 (1963), a father filed an application for a writ of habeas corpus after finding his child in Connecticut with the child's mother. His application seeking custody was based on a Norwegian court decree awarding him custody of that child. The child's mother essentially sought to have the writ dismissed. In rejecting the mother's efforts, the court reasoned that " [i]t is a well-settled principle that, unless the law of another jurisdiction or rights arising thereunder contravene our public policy or violate our positive laws, a plaintiff may enforce in this state any legal right of action which he may have whether it arises under our own law or that of another jurisdiction . . . Under the accepted principles of comity, it was proper for the plaintiff to allege, and sufficient for the court to recognize, with the other facts alleged, the outstanding judgment of the Norwegian court as a proper basis for entertaining the plaintiff's application for the issuance of the writ of habeas corpus . . . The issuance of the writ did not determine the validity of the foreign judgment or its effect, if any, as establishing the custodial rights of the parties. On the contrary, it served only to bring the parties before the court . . ." (Citations omitted; emphasis added) Id., 176-77.
Conclusion
The question before the court today is not whether Maria Gonzalez should have custody of S. Rather, the sole issue presented here, and never directly addressed in the related juvenile court case, is whether Maria Gonzalez has established a prima facie case for standing in order to prosecute her petition. This court now concludes that the totality of the evidence sufficiently makes out a prima facie case of a legal right to custody under the unique circumstances of this case. This petitioner removed this child at birth from Guatemala with the consent then, and now, of the child's birth mother and now has the imprimatur of a recent court order from Guatemala. As previously stated, whether this determination by the court in Guatemala ultimately proves binding on or persuasive to the court in Connecticut, after a full hearing on the merits of the habeas petition, is for another day.
Moreover, but for the unique circumstances that resulted in the child's removal from the petitioner's care, it is quite possible that this child may have been raised by Maria Gonzalez in the United States without drawing the attention of any government officials. As far as this court knows, the biological mother's parental rights have never been terminated. The uncontroverted evidence shows that the birth mother wants her child in the custody of the habeas petitioner, although the birth mother's present knowledge of the child's current status and living arrangements may be minimal and formal adoption proceedings have never occurred. The child's current status and living arrangements will undoubtedly be a factor to be considered by the court at the time of a final custody determination. While the manner in which Maria Gonzalez brought this child to the United States was clearly unlawful, and she will likely pay a significant price for that conduct, the undisputed facts show that she was the child's primary caregiver from birth until DCF removed the child under circumstances that the department later described as a " mistake" and that she has now obtained a court order in her favor. While Maria Gonzalez may not fall within any traditional legal definition of guardianship, the undisputed and important role that she played in this child's life, together with all of the other evidence described in this decision, at least establishes a prima facie case of standing sufficient for her petition to proceed further and " bring the parties before the court . . ." Adamsen, supra, 151 Conn. 177.
DCF concedes in its post-trial brief that " [t]here is no longer any dispute that Melissa E. is the biological parent and continues to possess her parental rights in [S]." See DCF's Post-Trial Brief in Support of Motion to Dismiss Maria Gonzalez's Petition for Habeas Corpus dated December 18, 2015, at page 2.
It is also important to note that the present issue before this court is not controlled by the Connecticut Supreme Court's holding in the related juvenile case because this issue was never before the juvenile court. First, DCF does not even make that argument. Second, Maria Gonzalez was not a party to that case which involved a neglect petition by the state against the biological mother. Third, the 2015 judgment of the Guatemala court that was introduced into evidence in this case was never a part of the juvenile court action that was tried in early 2014. While the reasoning of the Supreme Court in the juvenile case may impact the final custody determination in this case, it does not dictate the outcome of the limited issue of Maria Gonzalez's standing to prosecute her habeas corpus petition. The juvenile case focused on facts and circumstances at the time of the child's 2012 removal by DCF through the trial in early 2014. This habeas petition necessarily involves an assessment of the child's current situation, now approximately two years later, a significant period of time in the life of a six-year-old child.
The Supreme Court noted in
Finally, this court's ruling that Maria Gonzalez has established a prima facie case of a legal right to custody, sufficient to confer standing upon her to prosecute her petition, does not establish conclusively that she is, in fact, the legal guardian of S; that determination is for the trial court at the time of the final adjudication of the petition. Nobody disputes that the court in Guatemala in 2015 entered a custody order in favor of the petitioner; the dispute is over the impact of that order on this case. The determination that a prima facie case has been established in denying a motion to dismiss does not necessarily mean that the court, at the time of the final hearing on the merits, is required to take as true the evidence offered by the petitioner at the standing hearing. " Once a case is ultimately presented to the factfinder for final decision, an entirely different analysis is applied." Berchtold v. Maggi, 191 Conn. 266, 272, 464 A.2d 1 (1983). " [I]t [can be] legally consistent for the trial court to determine that the plaintiff had established a prima facie case justifying a denial of the defendant's motion to dismiss, and then to render judgment in favor of the defendant even though he put on no evidence." Id. At the final hearing, the court may ultimately elect to give no credence to the Guatemalan decree; Turner v. Frowein, 253 Conn. 312, 352, 752 A.2d 955 (2001).
ORDERS
The motion to dismiss (113) is DENIED. Counsel shall immediately contact the family case flow coordinator to schedule a status conference to be held within 30 days of the date of this decision for the purpose of scheduling hearing dates on all pending motions and for the entry of scheduling orders designed to effectuate a prompt disposition of this Case.
In re Santiago G., supra, 318 Conn. 474, that " [b]ecause Maria G. lacked the status of a legal parent, she also lacked the constitutional and statutory rights attendant to that status." While DCF does not make this argument, this court concludes that this statement from the Supreme Court is not dispositive of the present motion to dismiss because, as noted above, Maria G. did provide to this court prima facie evidence of guardianship in the form of the 2015 foreign court order obtained at the request of the child's adult biological mother whose parental rights have never been terminated. However, it is worth noting that the circumstances surrounding the entry of that foreign court order may or may not, after a full hearing on the merits, ultimately prove fatal to its formal recognition here for reasons that could include those referenced by the Supreme Court.